Culpable driving causing death is a very serious offence punishable by up to 20 years’ imprisonment. The offence is heard in the County Court or the Supreme Court.
This offence is created by section 318 of the Crimes Act 1958 (‘the Act’). That section says that any person who, by the culpable driving of a motor vehicle, causes the death of another person, shall be guilty of an indictable offence and shall be liable to up to 20 years’ imprisonment or a fine of 2400 penalty units or both.
To prove culpable driving, the prosecution must establish the following elements beyond a reasonable doubt:
- The accused drove a motor vehicle;
- The driving was culpable;
- The culpable driving caused the death of another person.
1. The accused drove a motor vehicle
The first element the prosecution must prove, beyond a reasonable doubt, is that the accused drove a motor vehicle. ‘Driving’ is not defined in the Act and takes its ordinary English meaning. According to the common law, to be ‘driving’ a person must at least be in a position to control the movement and direction of the vehicle Steering a towed or disabled vehicle will generally not be considered driving.
2. The driving was culpable
The prosecution must then prove, beyond a reasonable doubt, that the accused drove culpably. The circumstances in which an accused person will be held to have driving culpably are defined in s 318(2) of the Act. The prosecution must prove one of the different forms of culpable driving:
Culpable driving by Recklessness (s318(2)(a)
The prosecution must prove, beyond a reasonable doubt, that the accused consciously and unjustifiably disregarded a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving. The ultimate question is whether the accused realised the risk and continued driving regardless and whether this caused the accident which led to the death. Reckless driving implies that the driver considered the possible consequences that may arise from driving but was indifferent to those probable foreseen consequences.
Culpable driving by Negligence (s318(2)(b)
The prosecution must prove, beyond a reasonable doubt, that the accused unjustifiably and to a gross degree failed to observe the standard of care which a reasonable man would have observed in all the circumstances of the case. An error of judgment in a situation of sudden crisis, or a failure to successfully take evasive action, would therefore not constitute negligence.
Culpable driving under the influence of alcohol (s318(2)(c)
The prosecution must prove, beyond a reasonable doubt, that the accused was impaired by alcohol to such an extent that they were incapable of having proper control of the vehicle.
Culpable driving under the influence of drugs (s318(2)(d)
The prosecution must prove, beyond a reasonable doubt, that the accused was impaired by drugs such an extent that they were incapable of having proper control of the vehicle.
3. The culpable driving caused the death of another person
The final element the prosecution must prove, beyond a reasonable doubt, is that the accused’s culpable driving that significantly contributed to the victim’s death, or was a substantial and operating cause of it. The death need not flow solely from the accused’s act. Consider a situation where a person collides with a pole causing the death of a person. The events prior to the collision would need to be evaluated to consider whether there is a defence available.
Culpable driving causing death carries a maximum penalty of 20 years’ imprisonment and /or a fine of 2400 penalty units. It is also possible (although not very common) to receive a wholly suspended sentence, a partially suspended sentence, a non-custodial supervision order or a combination of a wholly suspended sentence and a fine. The baseline median sentence for culpable driving causing death according to the Crimes Act 1958 (Vic) s 318(1) is five years and 11 months’ imprisonment, which gives an idea of the seriousness with which the offences is viewed, although the Court of Appeal has found that baseline sentencing is unworkable.
There are almost an endless number of defences to a culpable driving charge. If the crash occurred because the brakes or steering of the accused person’s vehicle were not working properly then he or she would not have been driving culpably. Or the accused person may have been driving dangerously but not culpably. Have the police made errors in their reconstruction of the accident?
It is imperative that you seek expert criminal law advice if you have been charged with culpable driving or believe that the police may want to interview you in relation to this offence.
Sentencing outcomes in the higher courts
Culpable driving causing death was the principal offence in 0.7% of cases sentenced in the higher courts between 2009–10 and 2013–14. Over this period, a total of 67 people were sentenced for the offence. The most common sentence was imprisonment (87%), followed by a youth justice centre order (6%), a wholly suspended sentence (6%) and a non–custodial supervision order (1%). Sentences of imprisonment were most likely to be given to people aged 25 years or older, conversely those under the age of 25 were likely to receive an alternative penalty. The most common length of imprisonment was between five and six years.
To view sentencing decisions by Victorian County Courts for the charge of Culpable Driving, visit this page.
Any offence committed after 1 February 2018 for the offence of Culpable Driving Causing Death will be subject to standard sentencing.
The standard sentence for the offence of Culpable Driving Causing Death is 8 years.
This is the sentence that, taking into account only the objective factors affecting the seriousness of the offence, is in the middle of the range of seriousness.
For the purposes of assessing objective factors affecting the seriousness of a particular offence, matters personal to a particular offender or class of offenders are irrelevant.
The assessment must be done wholly by reference to the nature of the offending.
When sentencing an offender for a standard sentence offence, a court must give reasons for imposing that sentence. The court must refer to the standard sentence for the relevant offence of Culpable Driving Causing Death and explain how the sentence that it imposed relates to that standard sentence. Standard sentences do not apply to people under 18 years of age at the time of committing the offence.